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Editors --- "Derschaw, Clifton and Murphy v Sutton - Case Summary" [1997] AUIndigLawRpr 11; (1997) 2(1) Australian Indigenous Law Reporter 53

Derschaw, Clifton and Murphy v Sutton

9 February, 16 August 1996, Perth

Aboriginal people -- fishing right -- appeal against conviction for breach of Fisheries Act 1905 (WA) native title defence -- nature of evidence necessary to establish defence -- facts to be proved in support of right.

Held:

(1) Per Franklyn, Wallwork and Murray JJ:

A right to fish based on traditional laws and customs is a recognisable form of native title defended by the common law of Australia.

(2) Per Franklyn J (Murray J concurring):

(i) The general propositions which must be established to prove a native title right to fish are:

(a) that the claimant is an Indigenous person and a biological descendant of the Indigenous clan or group who exercised traditional and customary rights in respect of the land claimed, at the time when the Crown first asserted its sovereignty;

(b) there must be evidence that the claimant and his or her clan or group have substantially maintained their clan or group's laws and customs, including their traditional connection to the land, and native title will be made out to the extent to which those laws and customs have been maintained;

(c) evidence of change in the Indigenous community's laws and customs will not be fatal to a claim so long as the people remain a community of mutually identifiable members who continue to acknowledge their laws and customs

Evidence was led of the appellants' backgrounds and their mixed clan heritage, of their agreement to help provide food for the wake, of their traditional knowledge of fish movements, and of their beliefs in their right to fish according to Aboriginal tradition. The appellants had not established that they were the biological descendants of an Indigenous clan or group who exercised a right to fish in accordance with traditional laws and customs in the relevant area, immediately before the Crown claimed sovereignty. Continuous and uninterrupted observance of the relevant traditional laws and customs had not been demonstrated, and nor had it been proved that the taking of fish on the relevant occasion was an exercise of those traditional laws and customs. Native title was therefore not made out. The evidence was not sufficient to raise a reasonable doubt as to their guilt.

(ii) The raising of a native title defence does not place the onus on the prosecution to negative the claim. Where a native title defence is in issue, there is an evidentiary burden on the defendant to adduce evidence which raises a reasonable doubt as to their guilt. Once evidence sufficient to raise a reasonable doubt has been raised, the onus is then on the Crown to negative the claim. If it were otherwise, the prosecution would have an impossible burden and it would be open to any Aboriginal person, by mere assertion, to escape their obligations under legislation which apply equally to Aboriginal people as to others.

(iii) Statutory exemptions for Aboriginal people under fisheries legislation are not concerned with native title rights. They merely recognise that Aboriginal people have tended to be disadvantaged, and that they fish for food.

The appeal should be dismissed.

(3) Per Wallwork J (dissenting):

(i) The appellants had only to establish sufficient evidence to raise a reasonable doubt about the existence of native title. It was not necessary to prove the detail, limitations or restrictions of the system of native title. Native title can be raised by an accused as a positive defence, which if supported by evidence leaving the elements of an offence in doubt, will cause the prosecution to fail because it must satisfy the tribunal beyond reasonable doubt that a defence open upon the evidence should be rejected. The fact that nets were used does not disqualify the defence.

(ii) A defence will be made out the accused can show a private right to fish (as opposed to public rights enjoyed by other citizens) which was exercised in the appropriate manner on the occasion in question, and that the right had been denied them by a discriminatory State law.

(iii) All the evidence should be considered, including that the applicants were biological descendants of Aboriginal people who probably have a right to fish in the relevant area. The absence of contrary evidence should also be considered.

On the facts of the case it was particularly significant that the licensed professional fishermen whose licences were appropriately endorsed were exempt from the fishing prohibition, and that the applicants were fishing for some 300 people who had gathered to mark the burial of a prominent Aboriginal man.

(iv) The difficulties of proof which Aboriginal people face should be taken into account.

The appeal should be allowed.

Franklyn J:

The appellants appeal against a decision of a Judge of this Court delivered 15 August 1995 whereby His Honour upheld an appeal against the decision of a Magistrate delivered at Port Hedland on 8 November 1994 dismissing complaints issued against each of them alleging that, on 21 February 1993 at Six-Mile Creek, they were jointly in possession of fish taken in contravention of the requirements of a Notice of the Minister published in the Government Gazette (Number 7) of 27 January 1994 under ss. 9 and 11 of the Fisheries Act 1905; contrary to s. 12(1)(d) of the Act.

The learned Magistrate found as follows:

"I am of the view that given the provisions of the Fisheries Act and the evidence before me as to traditional methods and usage that the defendants were acting in pursuit of a native title right to fish. The Fisheries Act itself acknowledges that such rights exist, providing the fishing is for the provision of food for a family. There is no question that the defence is open and has been discharged to my satisfaction. In my view the Act does not extinguish the native title. Extinguishment must be clear and plain in order to extinguish the existing right exercised by the Defendants on 21st February 1993."

Section 9(l) of the Fisheries Act ("the Act") at the relevant time provided:

"9. (1) The Minister may, by notice published in the Government Gazette, prohibit all persons or any class of person specified in that notice from -

(a) taking any specified species of fish by any specified means of capture;

(b) taking any fish whatsoever by any specified means of capture;

(c) taking any specified species of fish by any means of capture whatsoever;

(d) taking any fish whatsoever by any means of capture whatsoever;

(e) taking any marine algal life whatsoever,

in Western Australian waters or in any specified portion of those waters, during any specified term or until a further notice is
so published."

The nets used by the appellants were of a type prohibited by the notice. None of the defendants was a professional fisherman.

It is not in dispute that, before the learned Magistrate, all of the elements of the offence were made out and the appellants conceded that they did possess the fish in contravention of the notice. Nor is it in dispute that the Aboriginality and historical background of each of the appellants as revealed by their evidence was not challenged. The issue on appeal was whether, on that evidence, it was open to the learned Magistrate to find that the appellants were each acting pursuant to a native title right to fish recognised by the common law, the conditions for the existence of which were identified by the High Court in Mabo v The State of Queensland (1992) 175 CLR I ("Mabo No 2") and conveniently summarised by Kirby P in Mason v Tritton (1994) 34 NSWLR 572 ("Mason"). The learned Magistrate's reasons reveal that the prosecution made no submission to him on the issue of native title. It is also apparent that His Worship found support for his finding that a relevant native title had been made out in the provisions of s. 56(l) of the Fisheries Act 1905, holding that it recognised "the Aboriginal right to fish" and "that traditional right to fish". He also relied substantially on quoted passages from the judgment of Kirby P in Mason (at that time unreported, His Worship acknowledging that he had access only to an edited version). The passages from that judgment referred to by His Worship all refer to the recognition at common law of a native title right to fish based on traditional laws and customs, of the need for there to be sufficient evidence to give effect to such a native title, and the question whether such a title, if established, has been validly extinguished. It is significant, however, that His Worship did not refer to the passages in that judgment at pp 582-584 (referred to subsequently herein) in which Kirby P refers to "general propositions" concerning native title which can be stated without reference to evidence and then what the evidence must demonstrate to make out such a title.

The reasons for decision of His Honour on appeal set out in detail virtually all of the relevant evidence given by the appellants before the learned Magistrate. Having done so, His Honour went on to say:

"On the evidence before the learned Magistrate it is clear that fishing has been a widespread customary practice of Aboriginal people in the Port Hedland area for many years, perhaps for hundreds of years. But, as Gleeson CJ said, in Mason v Tritton [1994] 34 NSWLR 572 at 574,

`Fishing is an activity which is so natural ... that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.'

In the same case at 579, Kirby P expressed the view that, consistent with the principles enunciated by the High Court of Australia in Mabo v Oueensland [No 2] (1992) 175 CLR I (Mabo), a `right to fish' based upon traditional laws and customs is a recognisable form of native title defended by the common law of Australia. I respectfully adopt that view. Kirby P went on to say, at 584,

`If the exacting nature of the evidential burden established by Mabo were not immediately apparent to potential claimants before, this case will serve to make clear the point. In order to establish a successful common law claim for native title of the kind asserted here, within the rules established by Mabo, the evidence must be sufficient to demonstrate:

(1) that traditional laws and customs extending [to] the `right to fish' were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory. ...;

(2) that the appellant is an indigenous person and is a biological descendant of that original Aboriginal community;

(3) that the appellant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted, to observe the relevant traditional laws and customs; and

(4) that the appellant's activity or conduct in fishing for (the fish in question) was an exercise of those traditional laws and customs.'

It appears from the evidence that one or more of the Aboriginal communities in the Port Hedland area -- in particular the Kooriata (also known as the Kariara) people and the Ngmal Ngmal (also known as the Njamal Njamal) people -- probably have a right to fish the waters of Six-Mile Creek. It appears also that the respondents Derschaw and Clifton, and perhaps Murphy, are biological descendants of one of those communities. But the evidence does not show the extent of the right -- for example, whether it is a right to take sufficient fish for food for the individual, for the family or for the community. It does not show whether it is a right to be exercised by any person in the community or by only a chosen few. It does not show whether the right is restricted by season, time or frequency. It does not show how the right came to be established nor whether it is subject to some set of rules. Finally, the evidence does not show that the netting of mullet by the respondents on the afternoon in question was an exercise of traditional laws and customs bearing upon the right. The respondents were not fishing for, or as members of, any particular original Aboriginal community with ties to the Port Hedland area. they were fishing for a multitude of people, many of whom did not live in the area.

In summary, the evidence falls far short of supporting the claim for native title asserted on behalf of the respondents. Rather, it shows that on the afternoon in question the respondents were engaging in what, in Mason v Tritton (supra) at 595, Kirby P described as `just ordinary ... activity of a kind which is regulated in a way that is for the protection of Australians -- Aboriginal and non-Aboriginal.'

The legal burden of proof in a criminal prosecution is upon the complainant and the standard required is proof beyond reasonable doubt (Woolmington v DPP [1935] UKHL 1; [1935] AC 462 at 481-2). Nevertheless in a case such as this there is an evidentiary burden upon a defendant to adduce evidence which might raise a reasonable doubt as to his guilt (He Kaw Teh v The Oueen [1985] HCA 43; (1985) 157 CLR 523 at 534-5 per Gibbs CJ and at 593-4 per Dawson J; Jayasena v The Queen [1970] AC 618 at 624 per Lord Devlin). In my opinion, there was no evidence before the learned Magistrate to raise a reasonable doubt as to whether the notice applied to the respondents."

The statement by Kirby P in Mason at 584 relied on by His Honour is, as I understand the learned President's reasons in that case, a summation of the general propositions to be found in the judgments of the High Court in Mabo No 2, as set out by him at pp 583-584 of his reasons as follows:

"Lack of evidence is fatal to the appellant's claim:

Whether in any particular case a claim for native title ought to be recognised must depend upon the facts proved. In Mabo Brennan J said (at 58): `Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty, as Moynihan J perceived in the present case.'

While the nature and incidents of native title involve proof of facts, Brennan J noted (at 59) that `some general propositions about native title can be stated without reference to evidence'.

Relevant to the proof of native title, those general propositions may be stated as follows:

1. There must be evidence that the claimant is both an indigenous person and a biological descendant of the indigenous clan or group who exercised traditional and customary rights in respect of the land claimed at the time when the Crown first asserted its sovereignty. Brennan J said (at 59) `... native title can be possessed only by the indigenous inhabitants and their descendants' (emphasis added): see also Deane J and Gaudron J (at 86, 88, 108) and Toohey J (at 186f);

2. There must be evidence that the claimant and his or her clan or group have `continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group'. Such evidence will establish that the `traditional connection with the land has been substantially maintained', allowing the finding that the `traditional community title of that clan or group ... remain[s] in existence': Mabo, per Brennan J (at 59-60);

3. Evidence of change in the indigenous community's traditional laws and customs is not of itself fatal to a claim for native title. Rather, the claimant will enjoy native title to the extent to which the traditional laws and customs are currently acknowledged and observed. Brennan J said (at 61):

`... Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by members according to the rights and interests which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.'

Substantial change in the traditional laws and customs of an indigenous community may result in the recognition afforded to that native title being somewhat less than the exclusive use, possession and occupation afforded to the inhabitants of the Island of Mer in the Mabo case;

4. Evidence that the claimant has abandoned acknowledgment of traditional laws and customs will be fatal to the claim for native title because, then, the foundation of native title will have disappeared. Brennan J said (at 60):

`... when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.'; and

5. The alienation of land between differing indigenous clans and groups `is dependent on the laws from which [native title] is derived' as `[n]ative title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law': Mabo per Brennan J (at 59). His Honour said (at 60):

`... a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people. Such a right or interest can be acquired outside those laws and customs only by the Crown.'"

Kirby P then carried on with the passage from his judgment at 584 quoted by the learned appeal Judge.

I have read the whole of the evidence of the appellants.

Derschaw is an Aborigine. At the time he lived in Port Hedland and was weekend manager of "Drovers' Rest", his role being "to take them camping, collect firewood, bush tucker, fishing whatever they feel like doing" He identified the nature of the Drovers' Rest community as a small community about 11 miles from Port Hedland established "for the nomadic type people around and a transit camp". The people of the community were "traditional people, full blood Aborigines that have no homes, that are expelled from their community and don't want ties with their community because of different law agreements." A large number of them were his direct family and he grew up in the area with most of them. As far as he was concerned "we" (not identified) had native title rights to fish at Six-Mile Creek but "I still fully don't understand what titles we do have with fishing". He identified the Ngmal Ngmal people as Aboriginal people of whom he said "they have a right to fish in the area" and "they have got all the keys". He did not identify himself with those people or identify them as a clan or group or explain what he meant by his reference to "keys", but it may well be that they could be assumed to be a group. As to other Aboriginal people, he was asked only whether any "have fished the water around that area [Six-Mile Creek]" and replied initially "yeah, Kirripa -- I can't think of the name of the mob". With assistance he then identified the people to whom he was referring as the Kooriata. His evidence as to his belief that he had a right to fish in the area was only that his mother "organised the bush meetings (not identified) for the past ten years" and, at about eight of them, over the past eight years, he had argued about "our" [not identified] fishing rights but could not get answers from any government departments. Asked how he understood he had a right to fish at Six-Mile Creek as an Aboriginal he replied, "Well whatever means possible, whatever I'm fishing for". In response to a question then put, he identified the extensive area from which his family came and was then asked, "As a result of that family, what is your belief about your right to fish in those waters (Six-Mile Creek) as an Aboriginal person?" He replied, "The same right as they believe they have got. I'm not too sure what they believe either". Asked how long that family had fished in "that area" he replied, "Since they have been here I suppose". His evidence did not explain whether the family he was referring to was the current live family or whether it included his ancestors, nor how long the family members had been in the area. It did not claim them to comprise a group, clan or community or membership of such. He later expressed the view that so far as "the traditional people" were concerned, they were allowed to fish in the area despite the restrictions imposed by the Notice and agreed with the proposition put to him by the learned Magistrate that he believed the restrictions did not apply to Aborigines. In a passage of his evidence not quoted by the learned appeal Judge, he said that, on the occasion the subject of the charges, he was fishing for mullet. He did so by waiting for the last four feet of tide because mullet are the last fish to come from the creek, saying that he had learned this "from traditional values". He explained traditional values to mean that the knowledge had been passed on through his father and through his father's father through him and that "it's just common knowledge among Aboriginal people how and when to catch fish". Asked in cross-examination if he could identify a group to which he belonged which gave him the right to fish he replied, "Yeah I'm Kooriata people -- I'm part of that group as well because you can't identify really what group you come from no more because everyone was chucked together `in all different clans and it's all interbred so everyone is part of one another's group". He gave no evidence as to when "everyone was chucked together", what the various other groups or clans were or might have been, where they or any of them came from; how long they had been in the area, of any connection of the Kooriata or any other of the clans with the land, whether or not the Kooriata was itself a clan or recognisable group or a collection of different clans and groups, whether it was a clan or group of which he was a biological descendant or any of the other matters necessary to demonstrate a native title right to fish in the area.

In my opinion Derschaw's evidence, relevantly, went no further than to establish him to be an Indigenous person resident in the area who believed that, as an Aborigine, he had a right to fish in Six-Mile Creek. It did not identify him as a biological descendant of any Indigenous group or clan which had exercised the right to fish immediately before the Crown claimed sovereignty. Nor did it demonstrate any of the matters which, in conformity with the decision in Mabo No 2, are required to be made out to establish a native title right to fish. It did not suggest that the claimed right was one to be exercised in accordance with traditional laws and customs of an organised group or clan and there was nothing to suggest that on the occasion in question the fishing was an exercise of traditional laws and customs. Indeed, as to this last, the evidence is sharply to the contrary. He testified that he had caught fish several times before from Drovers' Rest, its purpose being to aid the health of the community there, the fish caught being a major part of the community diet because "before it came into effect, the weekend manager, they were not eating at all and virtually just drinking and end up in detox centre at hospital and wherever else". When asked how it came about that he intended to go fishing on the occasion the subject of the charges he replied, "We were going to a great-uncle's wake to drop fish off for families because they had come as far as the Kimberleys and as far as down Onslow way. There were over 300 people there so we went to get some fish specifically for the wake". He described a wake as a sort of get together after a funeral. He then said "They asked us if we could go [to get the fish]. It was just a spur of the moment". He gave no evidence of fishing at Six-Mile Creek or elsewhere in the area on other occasions nor as to the identity, by way of groups or clans, family membership or otherwise of the 300 plus people or any others.

Clifton is an Aborigine and lived at South Hedland. His evidence that his father was one of the few remaining elders of the Kooriata people and "that leaves us boys next in line" is sufficient in my view, to establish him as a member of the Kooriata people. He gave no evidence as to who or what the Kooriata people are. He gave evidence as to his family background which was that his grandfather was from Turkey Creek and his grandmother from Lombadina and they had lived there all their lives. He was then asked his belief as to "fishing rights within the Six-Mile Creek for people in your family, people you come from" and expressed "the belief' that they had been fishing along the coast trapping fish for anywhere possible "for say hundreds of years". His reason for getting fish on the occasion of the charges was for fish for a wake for the late Matt Dan after his funeral. "We missed the funeral so we decided to, thought we would do something about it", adding in response to a question put that "we were approached and asked if we could get some fish". He said there were 200 to 300 people present. He did not give any evidence to identify them by way of group, clan, community or family. He had fished in the area before. Asked as to his knowledge of catching fish there he replied that it was not so much catching fish, but was going there crabbing, getting cockles and shellfish. He had done that since a child, having learned from elder relatives. As far as he was concerned, "we" (not identified) were allowed to fish there with a net or by any other means. That was effectively the whole of his evidence in chief and nothing further to support his claim to fishing rights emerged in cross-examination. In my view that evidence does not go to all of the matters to be established to make out native title and in no way goes to establish that on the occasion in question the fishing was an exercise of established relevant traditional laws and customs. In my view it goes no further than to say that Clifton and, in his belief, his forebears, have fished in the area, the latter for hundreds of years and that he believed that Aboriginal people were entitled to fish by any means.

Murphy is an Aborigine, lived in South Hedland and was employed as deckhand on a tug. Relevantly Murphy was asked his understanding of Aboriginal people's right to fish in Six-Mile Creek. His reply was "mainly the same belief as what Aubrey [Clifton] and Billy [Derschaw] was talking about. I have been doing it since I was a kid". He went on to say that his father used to take him there. Asked his purpose in getting the fish on the occasion in question he said, "We were supposed to get fish for a wake and that's the only way we could get a lot of fish I suppose, use the net to get the fish for the wake". Asked what were the traditions of his people "with funerals" and "what your cultural traditions are with funerals" he replied, "Just that everyone is supposed to gather around and get together after the funeral. We were going to supply fish for them, yes". Asked if that was what he had to do, he replied that it was. Then asked if he could explain that answer and whether "that" was because of his age and standing in the community, he replied "Yes. We were asked, how can I say this. We were asked to go and get fish for the wake, yes". Cross-examination added nothing to support his claim to a native title right to fish and in my view his evidence fails to establish any of the necessary elements to make out such a right recognisable at common law.

In my opinion the evidence before the learned Magistrate was insufficient to give rise to a recognisable claim to a native title fishing right recognisable at common law in that, whilst the evidence established each of the appellants to be an Aborigine and so an Indigenous person, it did not go any way to demonstrating, in my view, in respect of any them that he is a biological descendant of an Indigenous clan or group who exercised a right to fish in accordance with traditional laws and customs in an area within which Six-Mile Creek was situated, or even limited to Six-Mile Creek, immediately before the Crown claimed sovereignty over the area. Even had it done so, it failed to demonstrate continuous and uninterrupted observance of the relevant traditional laws and customs and that the taking of fish on the relevant occasion was an exercise of those traditional laws and customs. Consequently, it failed to establish any relevant native title right.

That part of the reasons of His Honour on appeal which contains his findings is set out earlier herein. Having regard to the grounds of appeal, it is significant, in my view, that in finding it to be clear that fishing has been a widespread customary practice of Aboriginal people in the Port Hedland area for many years, "perhaps for hundreds of years", His Honour did not find that such fishing was an exercise of traditional laws and customs, nor that it was a right exercised by any particular Aboriginal community. His reasons for not so finding, in my view, appear in the following paragraphs of the quoted passage of his reasons in which he quotes the cautionary dictum of Gleeson CJ in Mason at 574 and that of Kirby P at 579 and 584 where Kirby P identified the right to fish recognised by the common law to be one based upon traditional laws and customs. His Honour clearly adopted the opinion of Kirby P, as do I, and relied upon his statements of what evidence was required to demonstrate such title. It is clear therefrom, in my view, that His Honour was not equating the "widespread customary practice of Aboriginal people in the Port Hedland area" of fishing, with a native title right recognised by the common law. He went on to say that it appeared from the evidence that one or more of the Aboriginal communities in the Port Hedland area, and, in particular, the Kooriata and Ngmall Ngmal, "probably have right to fish the waters of Six-Mile Creek". I have some difficulty with that statement. It is not expressed as a finding and may well be no more than that there is some evidence to suggest that a right of some nature might exist. If it were intended to be a finding that, on the balance of probabilities, such communities had a right to fish based upon traditional laws and customs and so of a nature recognised by the common law, I would disagree. I would also not accept that the evidence is such as to reveal the existence of such a right in those people as to raise a reasonable doubt as to their guilt or to be sufficient to call on the Crown to negative the existence of native title. Any such conclusion, in my view, is not supported by the evidence. There are no findings of fact in accordance with the principles established in Mabo No 2 as elaborated upon by Kirby P in Mason to support it and no evidence capable of supporting the necessary findings. His Honour also stated that "it appears also that the respondents Derschaw and Clifton and perhaps Murphy are biological descendants of one of those communities". Again I have difficulty with that finding. In my view it is not supported in the case of Derschaw or Murphy. Derschaw did not claim to belong to the Ngmal Ngmal community or to be a descendant of it. He claimed to be a member of the Kooriata community but not to be a biological descendant of it, not knowing from what clan he was descended. Murphy's evidence as to his "racial heritage" was no more than that he was Aboriginal and had lived all his life in Port Hedland, his grandfather being from Turkey Creek and his grandmother from Lombadina where they had lived all their lives. He gave no evidence as to the community to which either of those people belonged. Were it intended as a finding, it does not, in any event, find the group or clan of which all or any of the appellants are or might be biological descendants to be one which exercised traditional laws and customs extending to the right to fish immediately before the Crown claimed sovereignty over the area, and which have continuously been exercised since, and in my view the evidence could not support such findings. Indeed that seems to be recognised by His Honour's following statement "but the evidence does not show the extent of the right". This appears to be a reference to paras 1 and 4 of the four numbered paragraphs earlier quoted by him from the dictum of Kirby P in Mason. That His Honour then listed matters (by way of example) not shown by the evidence and which he obviously considered relevant to demonstrating the existence of traditional laws and customs, reveals no more, in my view, than that he saw them as examples of the type of evidence required to demonstrate that, to be a relevant fishing right, it must be encompassed within traditional laws and customs extending to the right to fish and that the fishing the subject of the charge was an exercise of those traditional laws and customs. If it be the case that some of His Honour's examples were inappropriate, that does not fill the void created by the lack of evidence.

The grounds of appeal against His Honour's decision are as follows:

"1. The learned Judge erred in law in imposing too strict a requirement of proof upon the Defendants to discharge the evidentiary onus upon them necessary to raise the issue of a claim of native title fishing right sufficient to require the prosecution to exclude such claim beyond reasonable doubt.

(a) His Honour accepted there was evidence that

(i) fishing has been a widespread customary practice of Aboriginal people in the Port Headland area for many years, perhaps hundreds of years;

(ii) one, or more of the Aboriginal communities in the Port Headland area probably have a (native title) right to fish the waters of Six-Mile Creek;

(iii) the Defendants Derschaw and Clifton, and perhaps Murphy, are biological descendants of one of those communities;

(b) The learned Judge then erred in concluding there was no evidence to show

(i) the extent of the right;

(ii) who may exercise the right;

(iii) whether the right is restricted by season, time or frequency;

(iv) how the right came to be established;

(v) whether the right is subject to some set of rules;

when there was sworn and unchallenged evidence from the Defendants that because of their Aboriginal tribal membership and in accordance with their traditional Aboriginal custom and history they had and were entitled to exercise a native title right to fish at the relevant time and place and in the manner and for the purpose they did.

(c) In addition, and alternatively, the learned Judge erred in law in requiring proof of the factors at para (b)(i)-(v) inclusive for a claim of native title right to fish to be raised sufficiently to found a `defence' to the prosecution, ie to raise a reasonable doubt as to the guilt of the Defendants.

2.

(a) The learned Judge erred in law in finding there was no evidence before the learned Magistrate capable of raising a reasonable doubt whether the notice published pursuant to section 9(l) of the Fisheries Act 1905 (WA) prohibiting the taking of fish by means of nets other than a specified type, applied to the Defendants by reason of their claim to be exercising a native title right to fish (J. 14);

(b) additionally, and in the alternative, the learned Judge erred in fact in finding there was no evidence which did raise such a reasonable doubt.

(a) There was sworn evidence from the Defendants (which evidence was unchallenged by the prosecution) that, inter alia;

(i) the members of the community at Drovers' Rest are all traditional full-blood Aboriginal people from the area;

(ii) they (ie the community and specifically the Kooriata people, including the Defendants) had a native title right to fish in Six-Mile Creek;

(iii) that right to fish has been exercised for generations, probably hundreds of years;

(vi) there are no traditional restrictions on the manner of fishing;

(v) the Defendants were fishing in pursuance of their native title right to fish.

(b) The learned Judge failed to give any weight to the findings of the learned Magistrate made in light of the evidence and with the benefit of his local knowledge of the Aboriginal people in the area, the locality itself and his opportunity of seeing and hearing the Defendants give their testimony.

3. The learned Judge erred in law and in fact in finding the evidence before the Magistrate fell `far short' of supporting the claim the Defendants had and were exercising a native title right to fish and that it showed only that they were engaging in ordinary activity of a kind which is regulated in a way that is for the protection of Australians Aboriginal and non-Aboriginal (J. 14).

(a) The Defendants repeat the particulars at paragraphs I (a) and 2(a) and (b);

(b) the question is not whether certain activities such as hunting, fishing or walking over land can be described as `ordinary' in the sense they may be done by Aboriginal or non-Aboriginal people in the exercise of public rights, but is rather whether in a particular instance, such an activity is undertaken in the exercise of a private legal right which the law recognises and protects.

4. The learned Judge erred in law and in fact in concluding (at J. 13-14) that the evidence did not show that the netting of mullet by the Defendants at the relevant time was an exercise of traditional laws and customs bearing upon that right, when the sworn and unchallenged evidence of the Defendants (accepted by the learned Magistrate) was that it was."

For reasons I have already given I find there was no evidence before the learned Magistrate capable of giving rise to a finding that the appellants or any of them had a right to fish in the waters of Six-Mile Creek based upon traditional laws and customs as identified in Mabo No 2 and Mason and so of a nature recognised at common law. In my view, that is sufficient to dispose of ground of appeal I (a) and (b) and I would dismiss the same.

That all the elements necessary to make out the offence were conceded and that a native title right to fish was not made out disposes of any need to further consider grounds 1 (c), 3 and 4 and I would also dismiss those grounds.

The substance of ground 2, as I understand it, is that His Honour erred in finding that there is an evidentiary burden upon a defendant to adduce evidence which might raise a reasonable doubt as to his guilt, and in his further finding that there was no evidence before the learned Magistrate to raise a reasonable doubt as to whether the Notice applied to the respondent. The submission, as I understand it, is that, the claim to native fishing title having been raised to the extent that it was raised by the evidence, the onus was on the prosecution to negative the claim, there being no obligation on the defendant to raise a reasonable doubt. If the claim were not negatived, the offence was not made out beyond reasonable doubt. The effect of this submission is that the obligation was on the Crown to prove that the claimed native title right to fish did not exist. In my view the submission is wrong in law and, having regard to the particular requirements of a relevant right to fish, is one which would place an impossible burden on the prosecution and leave it open to any Aboriginal person, by mere assertion, to escape the obligations lawfully cast upon him by legislation which applies equally to Aboriginal people as to others. The claim of native title fishing rights can only be properly seen as a claim that the same exempts them from the operation of the relevant provisions of the Fisheries Act. The learned appeal Judge approached the question of onus of proof on the basis discussed by the High Court in He Kaw Teh v The Queen (1985) [1985] HCA 43; 157 CLR 523 at 534-5 (Gibbs CJ) and at 592-4 (Dawson J). That case was concerned with a defence of honest and reasonable mistake at common law, but nevertheless in my view the following comment by Dawson J as appearing at pp 592-3 is entirely appropriate to the facts of this case on the issue of onus:

"There is, however, no justification since Woolmington v Director of Public Prosecutions ([1935] A.C. 462) for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to case [sic] sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted."

If it needs to be made clear, it is clear from that passage that there is an evidential burden upon an accused wishing to raise a defence to provide the evidentiary foundation for that defence. A defence of native title fishing rights recognised at common law pursuant to the principles established in Mabo No 2 requires evidence which goes to each of the facts necessary to establish native title. It is not necessary that the evidence be such as to establish the defence on the balance of probabilities, but it must be such as to raise a reasonable doubt as to guilt. To do that it must be sufficient to lay the foundation for the claim of native title fishing rights and consequently, to go to each of the elements necessary to make out that claim. In the absence of evidence going to any such element there is insufficient foundation for the claim to have legal justification. Evidence sufficient to raise a reasonable doubt as to the guilt of the accused having been raised, the onus would then be on the Crown to negative the claim. In the present case, for the reasons already given, the evidence led, in my view, did not satisfy the evidentiary burden on the appellants and was insufficient to raise a reasonable doubt as to guilt by reason of their respective or joint claims to native title fishing rights. It was insufficient to raise as a matter of evidence a reasonable possibility that any one of them had such a right. That situation was not altered by any evidence given by, or obtained in cross-examination from the prosecution witnesses. In my opinion ground 2 also falls.

It was also raised in argument, although not reflected in the grounds of appeal, that alternatively ss. 9, 10 and 11 of the Act are invalid by operation of s. 10 of the Racial Discrimination Act 1975 (Cth). That claim was argued on the basis that the provisions of the Fisheries Act did not extinguish the (assumed) appellants' native title fishing right of the nature identified in Mabo No 2 and Mason and that, to the extent that the s. 56 purported to restrict those rights, it was invalid, it having become law subsequent to the Racial Discrimination Act 1975. Consequently it is not necessary to consider that submission further.

I would add, however, that it was strongly argued before us that s. 56 of the Fisheries Act recognised the existence of a native title right to fish. The learned Magistrate held to that effect and that such was the case was asserted by the appellants. In my opinion there is no merit in that assertion and His Worship was in error.

Regulation of fisheries by Colonial and State legislation in this State was initiated by the Fishery Act 1889 (53 Vic No 4). Its provisions were basic but it contained no provision exempting Aborigines from any thereof. Those provisions were regulatory and included the creation of offences of being in possession of fish of specified species of less than specified weight, using nets otherwise than as there provided, provision for the making of regulations for the taking and method of taking fish and the imposition of penalties for breach. That Act was amended by and became entitled the Fisheries Act by the Fisheries Act 1899 (63 Vic No 47) which included, by s. 11, the following provision:

"This Act shall not apply to fish obtained for food by the Aboriginal inhabitants of the Colony in their accustomed manner otherwise than by a weir or hedge."

The Fisheries Act 1899 was repealed and replaced by the Fisheries Act 1905 (5 Edward VII) which, by s. 43, contained an identical provision to s. 11 of the 1899 Act, the word "State" replacing the word "Colony". That provision was maintained in the Fisheries Act until 1979 when it was replaced by the present s. 56. All such Acts are clearly regulatory. Section 56 provides:

56.(1) Subject to the provisions of this section and to the restrictions imposed by or under sections 9, 10, 23, 23A, 24 and 26 but notwithstanding anything contained in any other provisions of this Act, a person of Aboriginal descent may take in any waters and by any means sufficient fish for food for himself and his family, but not for sale.

(2) The Governor may, if he is satisfied that --

(a) the power to take fish conferred by subsection (1) is being abused; or

(b) the population of any species of fish which is being taken under the power to take fish conferred by subsection (1) is becoming or is likely to become excessively depleted,

by regulation suspend or restrict the operation of that subsection in such manner and for such period and in such part or parts of the State as he thinks fit.

(3) In subsection (1)

`person of Aboriginal descent' means any person living in Western Australia who --

(a) is wholly or partly descended from the original inhabitants of Australia; and

(b) claims to be an Aboriginal and is accepted as such in the community in which he lives; `sale', without derogating from the normal meaning of the expression, includes sale by retail or wholesale, barter, exchange, supply for profit, offer or expose for sale, send forward or deliver for sale or cause or suffer or permit to be sold."

None of these Acts, in my opinion, are concerned with native title rights recognised at common law and certainly not of the nature identified in Mabo No 2 and Mason. The exemption the 1899 and 1905 Acts confer is curiously expressed as to "not apply to fish obtained ...". Those Acts do not confer any right. They are certainly not concerned with rights acquired by a group or clan or any form of organised community in respect of land. They are not concerned with traditional rights. They apply to every "Aboriginal inhabitant" of the Colony/State no matter how long or short a period of time the particular Aboriginal inhabitant may have been an inhabitant, and no matter from where he or she came. They recognised that Aboriginal inhabitants might have an "accustomed manner" of fishing and exempted them from the provisions of the Act only in so far as they obtained fish for food in that accustomed manner, even that being subject to the exclusion of obtaining fish by use of a weir or hedge. In no other way was any Aboriginal inhabitant exempted from their provisions which otherwise applied to Aborigines as fully as to others. The 1979 Act conferred on persons of Aboriginal descent as there defined, but subject to the provisions of the Act there specified, and limited to a taking of only "sufficient food for himself and his family but not for sale", a right to take fish by any means. The definition of persons of Aboriginal descent contained in the section embraces persons who did not fall under the accepted meaning or dictionary definition of Aborigine or Aboriginal. By subs. 2 the right to take fish may be suspended or restricted in the events there specified. The right conferred is clearly a conditional right only. It is not based on any connection with the land, direct or historical membership of a clan or group, traditional laws or customs, continuous use or biological descent. By
subs. 3(b) biological descent is not essential to its exercise. Qualification for exercise of the right there contained is to be a person of Aboriginal descent, as defined, living in Western Australia. In my opinion those Acts do and have done no more than recognise that Aborigines do fish and consume fish as food. They further recognise the place that Aborigines have and have had in our society and the disadvantages under which they suffer. They are regulatory laws which have made special provision for Aborigines and those whom Aborigines accept as Aborigines in their community in relation to fish taken for food. The right so conferred cannot, in my view, be fairly seen as a native title right recognised at common law not as discriminating against aborigines. I would dismiss the appeal.

Murray J concurred with the reasons and the decision of Franklyn J; Wallwork J dissented.